Citation Nr: 0623789
Decision Date: 08/08/06 Archive Date: 08/18/06
DOCKET NO. 04-01 827 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUE
Entitlement to a rating in excess of 10 percent for tinnitus,
to include based on assignment of a separate rating for each
ear.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
M. McPhaull, Associate Counsel
INTRODUCTION
The appellant is a veteran who served on active duty from
March 1957 to September 1978. This matter is before the
Board of Veteran's Appeals (Board) on appeal from a February
2003 rating decision by the Phoenix, Arizona Department of
Veterans Affairs (VA) Regional Office (RO).
FINDINGS OF FACT
1. The veteran has a documented complaint of right ear
tinnitus.
2. The 10 percent rating currently in effect is the maximum
schedular rating for service-connected tinnitus, whether it
is perceived in one ear or both ears; factors warranting
extra-schedular consideration are not shown.
CONCLUSION OF LAW
The veteran's service-connected tinnitus is properly
evaluated as 10 percent disabling. 38 U.S.C.A. §§ 1155, 5107
(West 2002 & Supp. 2005); 38 C.F.R. § 4.87, Diagnostic Code
(Code) 6260 (2002); 38 C.F.R. §§ 4.1, 4.87, Code 6260 (2005);
Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Veterans Claims Assistance Act (VCAA)
The VCAA, describes VA's duty to notify and assist claimants
in substantiating a claim for VA benefits. 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R.
§§ 3.102, 3.156(a), 3.159. 3.326(a). The United States Court
of Appeals for Veterans Claims (Court) has held that the
statutory and regulatory provisions pertaining to VA's duty
to notify and to assist do not apply to a claim if resolution
of the claim is based on statutory interpretation, rather
than consideration of the factual evidence. See Dela Cruz v.
Principi, 15 Vet. App. 143, 149 (2001).
In the instant case the facts are not in dispute. Resolution
of the veteran's appeal is dependent on interpretation of the
regulations pertaining to the assignment of disability
ratings for tinnitus.
Because no reasonable possibility exists that further notice
or assistance would aid in substantiating this claim, any
deficiencies of VCAA notice or assistance are rendered moot.
See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App.
362, 368 (2001) (compliance with the VCAA is not required if
no reasonable possibility exists that any notice or
assistance would aid the appellant in substantiating the
claim).
Factual Background
On March 2002 VA examination, it was noted that the veteran
perceived periodic tinnitus in the right ear.
By rating decision in November 2002, the RO, in pertinent
part, granted service connection for tinnitus as secondary to
service connected hearing loss, bilateral, rated 10 percent.
In January 2003, the veteran's representative, on his behalf,
filed a claim requesting separate rating of 10 percent for
each ear.
In a November 2003 Notice of Disagreement, the veteran's
representative again requested a separate 10 percent rating
for each ear. A December 2003 statement of the case
characterized the tinnitus as bilateral and continued the 10
percent rating.
Analysis
In general, disability evaluations are assigned by applying a
schedule of ratings that represent, as far as can practically
be determined, the average impairment of earning capacity.
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic
codes identify the various disabilities. The diagnostic code
that addresses tinnitus was amended effective June 13, 2003.
Under the rating criteria in effect prior to June 13, 2003
(former rating criteria), Code 6260 provided that if the
tinnitus was shown to be recurrent, a maximum 10 percent
evaluation was warranted. It was followed by a note stating
that a separate evaluation for tinnitus may be combined with
an evaluation under Codes 6100, 6200, 6204, or other
diagnostic code, except when tinnitus supports an evaluation
under one of those diagnostic codes. 38 C.F.R. § 4.87, Code
6260 (2002). Under the criteria in effect from June 13, 2003
(revised rating criteria), recurrent tinnitus warrants a 10
percent evaluation. Note (1) following Code 6260 states that
a separate evaluation for tinnitus may be combined with an
evaluation under Code 6100, 6200, 6204, or other diagnostic
code, except when tinnitus supports an evaluation under one
of those diagnostic codes. Note (2) provides that only a
single evaluation for recurrent tinnitus will be assigned,
whether the sound is perceived in one ear, both ears, or in
the head. Note (3) states that objective tinnitus (in which
the sound is audible to other people and has a definable
cause that may or may not be pathologic) is not to be
evaluated under Code 6260 but is to be evaluated as part of
any underlying condition causing it. 38 C.F.R. § 4.87, Code
6260 (2005).
Historically, in Smith v. Nicholson, 19 Vet. App. 63 (2005),
the Court reversed a Board decision that found that, under
pre-June 2003 regulations, no more than a single 10 percent
rating could be provided for tinnitus, whether perceived as
bilateral or unilateral. The Court held that pre-1999 and
pre-June 23, 2003, versions of Code 6260 required that VA
assign dual 10 percent ratings for "bilateral" tinnitus
where it was perceived as affecting both ears.
VA appealed the Court's decision in Smith to the United
States Court of Appeals for the Federal Circuit (Federal
Circuit). To avoid burdens on the adjudication system,
delays in the adjudication of other claims, and unnecessary
expenditure of resources based on court precedent that could
ultimately be overturned on appeal, the Secretary imposed a
stay at the Board on the adjudication of tinnitus claims
affected by Smith. The specific claims affected by the stay
essentially included all claims in which a claim for
compensation for tinnitus was filed prior to June 13, 2003,
and a disability rating for tinnitus of greater than 10
percent was sought.
Recently, the Federal Circuit reversed the Court's decision
in Smith, and affirmed VA's long-standing interpretation of
Code 6260 as authorizing only a single 10 percent rating for
tinnitus, whether perceived as unilateral or bilateral.
Smith v. Nicholson, 451 F3d. 1344 (Fed. Cir. 2006). Citing
Supreme Court precedent, the Federal Circuit explained that
an agency's interpretation of its own regulations was
entitled to substantial deference by the courts as long as
that interpretation was not plainly erroneous or inconsistent
with the regulations. Id.. Finding that there was a lack of
evidence in the record suggesting that VA's interpretation of
Code 6260 was plainly erroneous or inconsistent with the
regulations, the Federal Circuit concluded that the Court
erred in not deferring to VA's interpretation.
As a consequence of that holding, on July 10, 2006, the
Secretary rescinded the stay that had been imposed on all
claims affected by Smith, to include the claim at hand, and
directed the Board to resume adjudication of the previously
stayed claims consistent with VA's longstanding
interpretation that a single 10 percent disability rating is
the maximum rating available under Code 6260, regardless of
whether the tinnitus is perceived as unilateral or bilateral.
In view of the foregoing, the Board concludes that the
version of Code 6260 in effect prior to June 2003 precludes a
rating in excess of a single 10 percent for tinnitus.
Therefore, the veteran's claim for a separate 10 percent
rating for each ear for his service-connected tinnitus must
be denied under both the former and revised versions of the
regulation. As the disposition of this claim is based on the
law, and not the facts of the case, the claim must be denied
based on a lack of entitlement under the law. See Sabonis v.
Brown, 6 Vet. App. 426, 430 (1994).
Finally, although not raised by the veteran or his
representative, the Board has considered whether the case
should be referred to the Director of the Compensation and
Pension Service for extra-schedular consideration under 38
C.F.R. § 3.321(b)(1). The record does not reflect that the
veteran has required hospitalization for tinnitus or that
manifestations of this disability are greater than those
contemplated by the schedular criteria. In addition, there
is no suggestion in the record that the veteran's tinnitus
would result in marked interference with employment.
Therefore, referral of this case for extra-schedular
consideration is not in order. See Floyd v. Brown, 9 Vet.
App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App.337 (1996).
ORDER
A rating in excess of 10 percent for tinnitus, to include
based on assignment of a separate compensable rating for each
ear, is denied.
____________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs